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You started it! When the victim is the instigator of harassment

We often hear from our clients, or through the course of investigations, that the incidents now being alleged to be harassment are part of the workplace culture, and that an employee’s active participation in the harassing behaviour means that the conduct should not constitute harassment for that employee.

Is the employee’s participation in the harassing behaviour a valid defence to sexual harassment? According to a recent Human Rights Tribunal (“BCHRT”) decision from British Columbia, it may be.

The case involved a female employee, Adele Kafer, who alleged sexual harassment as against her manager. The sexual harassment included being told that she would have to be “roofied” so that a co-worker could sleep with her; receiving sexualized emails about her sexual orientation and preferences; and being told that men and women wanted to sleep with her. Her manager also made comments such as “see you later bitch.” When Ms. Kafer complained to Human Resources, she was told that it was best that she just focus on her work, after which Ms. Kafer allegedly asked her employer not to pursue her complaints. For those reasons, the employer did not proceed to investigate the complaints. Unhappy with the employer’s decision, Ms. Kafer complained to the BCHRT that her employer had sexually harassed her.

The BCHRT dismissed Ms. Kafer’s application because they found that she had, herself, participated in and was at times the instigator of the crude, sexual banter. The BCHRT pointed out that sexual harassment is defined as “unwelcome conduct”, and to establish that conduct is “unwelcome”, a “reasonable person” ought to be made aware or should otherwise know that the conduct is unwelcome. The BCHRT concluded that Ms. Kafer’s participation in “dirty talk” and other sexualized conduct would not have alerted the reasonable person that she found the behaviour and comments unwelcome or bothersome.

Despite its final decision, the BCHRT did remind employers that it is not a defence to say that the workplace has a culture of sexualized banter and conduct, and employers continue to have a duty to provide a workplace free of sexual or other forms of harassment.

This decision poses an interesting question for employers: should the conduct of an allegedly- harassed employee be considered when dealing with a harassment complaint?

It’s important to keep in mind that just because an employee participated in the harassing behaviour does not mean they were not harassed. In fact, a recent Ontario Human Rights Tribunal (“OHRT”) decision held that even where an employee has condoned certain jokes, the claim for harassment is made out if she has not sought or otherwise welcomed the sexualized attention she then receives from her co-worker.

It can be dangerous for an employer to focus on the explicit behaviour and preference of the victim, as it ignores the psychological and emotional components of harassment. An employee may not explicitly oppose, and may even participate in the behaviour, out of fear for their safety or of losing their job.

The OHRT has commented that “protest or objection to a manager’s conduct is not a precondition to a finding of harassment. Because of the power imbalance in the manager-employee relationship and the perceived consequences of objecting to a manager’s behaviour, an employee may keep quiet about unwelcome conduct. But this does not necessarily mean that he or she welcomes it.”

While the allegedly harassed employee’s behaviour should be a factor in the analysis, employers should remember that they remain responsible for the health and safety of employees. For that reason, employers should be mindful of the following due diligence measures when a harassment complaint is made:

Take complaints of harassment and violence seriously, despite the workplace culture, and implement the steps prescribed in the harassment and violence policy;

Do not make assumptions of what occurred before conducting the investigation;

Investigate the alleged misconduct by interviewing the complainant, respondent and other relevant parties;

Report the findings of the investigation to both parties;

Take the appropriate disciplinary action (if required); and

Do not allow findings and conclusions of the investigation to be altered by any employee’s preference or perceptions of employee conduct.

Even if the victim’s behaviour is taken into consideration when making liability decisions, there is no question that employers are better insulated from a legal perspective by following the steps set out above.

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